Braun: A strange argument, a stranger reluctance to question in school funding argument

TRENTON — Peter Verniero, a former member of the state Supreme Court, all but invited his former colleagues to step down symbolically from their bench, cast off their robes and join the Christie administration’s crusade to solve what he called the state’s “extraordinary fiscal crisis” by allowing cuts in state school aid.

In an unusual argument for any lawyer — much less a former justice — Verniero conceded the administration may have “breached” the Constitution but, if it did, he said it was only a “minor breach” and asked the court to overlook it.

“Given the fiscal crisis and the good faith of the other branches, even if you find a breach, you should stay your hand,” Verniero said.

Verniero, appointed special counsel to argue the school finance case, contended that, while this might or might not be such an instance, there were cases when the Legislature could ignore constitutional guarantees to save money in times of fiscal crisis as long as lawmakers and Gov. Chris Christie had “acted in good faith.”

Then he looked straight at Associate Justice Jaynee LaVecchia — somehow made yesterday the most senior member of the court hearing the case — and cautioned, “Consider the implications of ordering $1.6 billion restored, consider the fiscal crisis.”

Maybe the court members held back because Verniero was once one of them. Or, maybe, they just feel so besieged by a governor who has vowed to change its membership and already removed the only African-American jurist sitting on the panel. But there was a time when such arguments would likely have provoked protests from the bench.

Instead, the only question now is how many of the five justices hearing the case will accept that invitation from Verniero to overlook a “minor” breach of constitutional rights. Associate Justice Virginia Long, a supporter of past school-finance decisions, recused herself without explanation. Chief Justice Stuart Rabner, counsel to former Gov. Jon Corzine, also has taken himself out of it.

One who won’t side with Christie will be Associate Justice Barry Albin, who repeatedly challenged Verniero’s assertion that the fiscal crisis forced the cuts by Christie and the Legislature. He wanted Verniero to explain how the state could be broke when it allowed a billion dollars in tax revenue to disappear by letting the so-called “millionaire’s tax” expire.

Attorney David Sciarra speaks after Supreme Court hears Abbott v. BurkeOn Wednesday the New Jersey Supreme Court heard arguments on the constitutionality of Christie's education budget cuts in regards to previous rulings of Abott v. Burke. After the arguments, attorney David Sciarra spoke the press. Sciarra spoke on behalf of the former "abbot districts" in Wednesday's hearing. (Video by Michael Monday/The Star-Ledger)

The state had the billion dollars when it enacted the school aid formula, Albin said, “but now there’s the same formula with a billion dollars less.”

Verniero would not answer Albin. He simply would not talk about the millionaire’s tax — in or out of court. He just ran away from the issue.

LaVecchia also won’t join the Christie crusade.

“We can’t turn back the clock,” said LaVecchia, who reminded Verniero that the court found the state had violated the rights of schoolchildren in poorest districts. “There was a finding of a constitutional violation. That finding exists, and it has not been extinguished.”

She reminded Verniero the state asked the court to get rid of its special treatment of the so-called “Abbott districts,” the poorest systems in New Jersey. In its place, the state wanted a “unified” school aid formula that treated all districts the same. The court ruled it would accept that as long as it was fully funded.

“It was a state-conceived formula,” said LaVecchia, who wrote the decision now challenged by the state. “The state came to this court with it as if it were tablets taken down from the mountain, carved in stone. Aren’t you estopped from taking a different position now?”

Of course, it was Corzine’s administration that devised the formula. The law describes in great detail what students need to know — the so-called “core curriculum content standards” — and attaches funding to how the standards are taught. Now, Christie doesn’t like the formula but until the Legislature passes — and he signs — a new one, he is stuck with it.

Unless, of course, Justices Albin and LaVecchia can’t find a third justice to make a majority for upholding the law. That could require compromise. Ordering funds restored only for Abbott districts, for example. Or allowing this year’s cuts to stand because the school year is almost over but insisting the formula be revived in the next fiscal year.

Even if a majority is found, no one can predict what the governor will do. He has criticized the court and hinted he might defy an order to restore the money. Yesterday, Michael Drewniak, the governor’s spokesman, was asked whether Christie would obey an order to restore funding.